DYPJ and Secretary, Department of Social Services (Social services second review)

DYPJ and Secretary, Department of Social Services (Social services second review) [2023] AATA 3242 (12 October 2023)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/9729

GENERAL DIVISION )
Re: DYPJ
Applicant

And: Secretary, Department of Social Services
Respondent
And: JJCD
Other Party
DIRECTION
TRIBUNAL: Senior Member D. J. Morris
DATE OF CORRIGENDUM: 12 October 2023
PLACE: Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for decision in this application.
In paragraph 102, the word “week” is omitted and in its place the word “fortnight” is substituted.

.................................[SGD]..................................
Senior Member
Division:GENERAL DIVISION
File Number: 2022/9729
Re:DYPJ
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndJJCD
JOINED PARTY

DECISION
Tribunal:Senior Member D. J. Morris
Date:12 October 2023
Place:Melbourne

The Tribunal affirms the decision that the joined party, JJCD, was eligible to be paid special benefit from the date of her claim on 2 August 2021.
.....................................................[SGD]...................
Senior Member D. J. Morris
Catchwords
SOCIAL SECURITY – where joined party came to Australia and was subsequently granted contributory parent visa – where respondent recommended joined party find a person to lodge an assurance of support – where applicant lodged an assurance of support – where applicant lodged bank guarantee – where joined party later lodged claim for special benefit – where respondent granted special benefit – where applicant asked authorised review officer to review decision to grant special benefit – where authorised review officer affirmed decision and decided joined party not receiving adequate support – where applicant lodged application for First Review with Tribunal of this decision – where First Review decided applicant had no standing – where applicant sought review by General Division of Tribunal – where General Division of Tribunal decided applicant had standing – where break-down occurred in relationship between applicant and joined party – where joined party ceased to receive overseas pension before claim for special benefit – where not apparent joined party had any funds for personal discretionary expenditure – what is an adequate level of support – government policy on assessing what is adequate support – where Tribunal satisfied joined party did not have adequate level of support before claim for special benefit – where Tribunal satisfied there was a change in circumstances of joined party that could not be prevented – where applicant conceded he was unable to provide support to joined party from a particular date – where applicant disputes earlier date of grant of special benefit – where source of income of joined party materially changed prior to her claim for special benefit – Tribunal satisfied of date claim accepted – decision under review affirmed
PRACTICE AND PROCEDURE – where application for review brought by applicant relating to grant of a social security payment to another person – where a potential outcome of Tribunal’s review is cancellation or variation of start date of social security payment to the other person – where respondent submits that Tribunal consider whether interests of special benefit recipient potentially affected by Tribunal’s deliberations – where applicant agrees other person’s interests potentially affected – where Tribunal determines recipient’s interests directly affected – where Tribunal joins recipient as a party to proceedings
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs; Re: (No 2) (1979) 2 ALD 634
Secondary Materials
Department of Social Services – A guide to Australian Government payments 1 July 2021 to 19 September 2021 – Department of Social Services
Social Security Guide, Version 1.312 – Released 20 September 2023 – Department of Social Services
REASONS FOR DECISION
Senior Member D. J. Morris
xx October 2023
PRELIMINARY

This matter concerns the Applicant (‘DYPJ), his mother (‘JJCD’), and the Respondent, who is the Secretary of the government department that administers a social security payment called the Special Benefit.
DYPJ and his family live in Melbourne. JJCD and her husband (DYPJ’s stepfather) decided to come to live in Australia from their homeland in Ukraine. DYPJ was to sponsor them. In the course of obtaining the relevant visas, sadly JJCD’s husband died. However, the plan for her to emigrate continued.
In October 2018 JJCD arrived in Australia. She had previously come to Australia to visit her son and his family on several previous occasions, and had stayed for extended periods. In December 2018 she lodged an application with the Department of Home Affairs to migrate to Australia. In September 2019, the Department of Home Affairs advised JJCD that it recommended she find a person to lodge an Assurance of Support on her behalf in relation to an application for a Contributory Parent (subclass 143) visa.
In October 2019 DYPJ applied to provide an Assurance of Support for JJCD as part of her application for the visa. In January 2020 DYPJ lodged a $10,000 bank guarantee with the Commonwealth Bank.
At the end of January 2020 Services Australia, part of the Respondent’s Department (hereafter referred to as ‘the Department’), issued a notice to DYPJ advising him that his application for an Assurance of Support for JJCD had been accepted. The notice relevantly said:
Your responsibilities as an assurer will start when the visa application arrives in Australia or is granted the Assurance of Support affected visa. You are responsible for providing support to the assuree listed above [i.e. JJCD], so there is no need for them to claim payments from us.
…
If you do not provide support
If you are unable or unwilling to provide support or if it is unreasonable for the support to be accepted and certain recoverable income support payments are made to your assuree during the Assurance of Support period, you will accrue a debt. You will be liable to repay the full amount of that debt approximately every 12 months.
If a term deposition has been provided, in the first instance this will be used to recover any Assurance of Support debts you owe us.
On 24 February 2020 JJCD was granted the visa, subject to a ten-year-period of the Assurance of Support from DYPJ.
In early August 2021, JJCD lodged a claim for Special Benefit. In so doing she said that she had no income or support. On 21 September 2021 the Department decided to grant Special Benefit.
The Respondent submitted that DYPJ asked that the Department review the decision to grant JJCD Special Benefit from 2 August 2021. The documents before the Tribunal acknowledge a request from DYPJ dated 1 July 2022 but the request itself is not before the Tribunal (TD, pp 201-202).
On 5 August 2022 an authorised review officer (‘ARO’) in the Department, who is an officer not involved in the original decision to grant JJCD Special Benefit, decided that JJCD was not receiving adequate support and affirmed the decision to grant Special Benefit.
On 18 September 2022 DYPJ lodged an application with the Social Services and Child Support Division of this Tribunal challenging the ARO’s decision (‘First Review’). A hearing was held and, after deliberation, the First Review decision was that DYPJ did not have standing to challenge the decision to grant Special Benefit, in a case where there had at that time been no effect on his Assurance of Support.
DYPJ took the First Review decision to the General Division of the Tribunal. The Tribunal, differently constituted, held a hearing to determine whether there was jurisdiction to conduct a Second Review. The Tribunal decided that DYPJ did have standing to challenge the grant of Special Benefit because his interests were affected, in that the payment of the Special Benefit would lead to him incurring a debt as the assurer. The Tribunal also decided that the First Review decision that DYPJ did not have standing should be taken to be an affirmation of the reviewable decision, because that decision was not disturbed.
Therefore, the Tribunal determined that the General Division had jurisdiction to hear the substantive application.
HEARING
The matter was then constituted to me. A hearing was held on 30 August 2023. DYPJ made submissions and gave evidence. The Respondent was represented by Mr Matthew Gauci of Hunt & Hunt Lawyers, with Ms Vincci Chan, a legal officer of the Department. JJCD was to join in the hearing and a Russian interpreter was engaged to assist her, but on the day, for technical reasons she was not able so to do.
At the hearing, the Tribunal took into evidence the following exhibits:
(a)Volume of ‘T’ documents submitted under s 37 of the AAT Act (Exhibit R1);
(b)Volume of ‘T’ documents with three documents withheld (Exhibit R2);
(c)Certificate of ownership, apartment in Ukraine (Exhibit A1);
(d)Authorisation to sell apartment 4 June 1999 (Exhibit A2);
(e)Advice of Mr Konstantin Tringas, Applicant’s solicitor, 16 August 2022 (Exhibit A3);
(f)Advice of office of Member for Aston, 21 September 2022 (Exhibit A4);
(g)Ombudsman decision dated 26 September 2022 (Exhibit A5);
(h)Ombudsman complaint, 26 September 2022 (Exhibit A6);
(i)Ombudsman review dated 20 December 2022 (Exhibit A7);
(j)Centrelink review information, 27 December 2022 (Exhibit A8);
(k)SSRV Information sheet – when Centrelink fails to make a decision (Exhibit A9);
(l)Ukraine household income per capita, 1999-2021 (Exhibit A10);
(m)Ukraine pension ATM withdrawal Feb-March 2021 (Exhibit A11);
(n)Ukraine pension ATM withdrawal May-June 2020 (Exhibit A12);
(o)Ukraine pension ATM withdrawal Oct-Nov 2020 (Exhibit A13); and
(p)Ukraine pension ATM withdrawal Sept 2021 (Exhibit A14);
After the hearing, exercising its powers under s 33 of the Administrative Appeals TribunalAct 1975 (Cth) (‘the AAT Act’) the Tribunal of its own initiative issued summons to Victoria Police for production of their records of attendance at the residence of DYPJ and JJCD in a specific period. These ‘LEAP’ records, in redacted form, were returned by Victoria Police and provided to the Applicant and the Respondent with leave to comment, which both did. The responses were taken into account.
The Tribunal also formally requested the Respondent provide a report of a social worker employed by the Department and whose report was before the ARO and referred to in the ARO’s notes written preparatory to the reviewable decision.
The Tribunal further admitted into evidence a letter dated 3 September 2023 from Ms AW, a social worker and friend of the Applicant and his family (Exhibit A15).
Applicant’s Opening Statement
DYPJ told the Tribunal that he did not fail in his Assurance of Support. He submitted that the hearing was not only about whether and when JJCD should receive Special Benefit but about false allegations that he failed his Assurance of Support obligations.
DYPJ said that the Respondent asserted that his mother was in genuine need and applied for Special Benefit; he disputed that and said JJCD was manipulated and driven to the Centrelink offices by an advocate from a community legal centre. DYPJ said that JJCD suffers from dementia with paranoid tendencies and that she was not capable of applying for Special Benefit by herself.
DYPJ said;
’I do acknowledge that as of today, my mother is eligible for social security payment… and she is eligible… starting 10 February 2022 when she left my property [because I could no longer provide support]… I do not request to stop this payment… I question the starting date… of August 2021… because I was supporting my mother… paying all the bills... she was not in need’.
DYPJ said that he supports five people on his single income. He said that JJCD ‘manifested a mental health condition and wanted me to get rid of my wife. I became collateral damage, as did the children.’
DYPJ said that the people his mother went to see at the community legal centre took for granted claims made by JJCD that he did not support her, which he said was quite wrong.
Respondent’s Opening Statement
The Respondent contended that the hearing is not about the Assurance of Support, but is about whether JJCD should have received Special Benefit from 2 August 2021. In other words, at the time of the claim, was JJCD receiving ‘sufficient livelihood’.
The Respondent said that there was conflicting evidence from the Applicant, JJCD and third parties and, in such a case, the Tribunal should give greater weight to the evidence of the third parties.
The Respondent submitted that the Tribunal must consider whether JJCD was subject to the Newly Arrived Resident’s Waiting Period (‘NARWP’) and whether there was any justification to exempt her. The Respondent said that the Secretary’s position is that JJCD had a substantial change to her circumstances, that the exemption was properly made and therefore the reviewable decision was correct.
Statement in response from Applicant
DYPJ said that third-party evidence the Respondent relies upon has not been disclosed to him. He said all he had done is tried to provide for his mother and his family. He told the Tribunal that ‘they’ arranged removal of JJCD from her residence without any notification to him or consent, which ‘forced me to stop support from that day’. He told the Tribunal that the community legal centre demonstrated hostility towards him and his wife by accepting that his mother’s claims were true.
DYPJ said that his wife went to see JJCD in her granny flat behind his residence. He said she slammed the door and closed the curtains and then took photographs of his wife in an endeavour to show she was ‘trying to break in’.
DYPJ said that JJCD showed others her empty refrigerator in the flat, but did not show that she had access to two full fridges in the main house, to which she had her own key. DYPJ said that that JJCD spoke to his wife as though she was a criminal.
The Applicant’s oral evidence
DYPJ confirmed that JJCD came to Australia in October 2018 on a short-term visa. He said she had regularly visited Australia for lengthy periods in the previous ten years, from 2008, sometimes accompanied by her late husband, and stayed with the Applicant.
DYPJ said in 2016 the family met and, given the situation in Ukraine at the time, decided it was best to bring JJCD and her husband to Australia to live. It was decided to apply for a contributory parent visa.
Mr Gauci asked DYPJ whether as part of the visa someone was required to provide an Assurance of Support. The Applicant responded that both he and his wife did, and that he had not broken the promise.
Mr Gauci asked DYPJ about his mother’s English proficiency. The Applicant responded that although she had studied English at university, her command of the language now is ‘zero’, which he attributed to her mental condition. He told the Tribunal that his mother used to be ‘moderately reasonable’ with her proficiency in English.
DYPJ said that JJCD had a career as a physics teacher in Ukraine but that teachers were poorly paid, and he estimated she received around A$20 per month. He said that his mother was well-educated. DYPJ said that she retired in the 1990s.
Mr Gauci asked how JJCD supported herself in Ukraine. The Applicant responded:
‘She received [a] Ukrainian pension…which is about A$220 per month… You can live on that in Ukraine given you don’t pay a mortgage.’
DYPJ said that his mother continued to receive her Ukraine pension after she moved to Australia:
‘Except for a brief technical problem… she did withdraw it from an ATM, and I did assist her... I created a Bank of Melbourne account for that purpose… but instead she preferred to withdraw it from her Ukrainian account.’
Mr Gauci asked if JJCD could withdraw her pension money from the ATM without assistance. The Applicant responded that she could not, and if she wanted to go to the ATM, he would take her.
The Respondent asked the Applicant if JJCD had any assets in Ukraine after 2018. He said that she sold her apartment in Kiev and had no other assets in that country.
Mr Gauci asked DYPJ how much money was available from the proceeds of the sale of the apartment after paying visa costs. DYPJ responded:
‘Around A$80,000, and we spent about A$63,000 on immigration expenses… and it was agreed she would live in the granny flat… once she got permanent residency, she started to demand the money back.’
DYPJ said that the granny flat had three rooms and was separate from the main house with all amenities. He said it has a kitchenette, a bathroom and a lavatory. He told the Tribunal that JJCD went to the police complaining of the living conditions.
Mr Gauci asked the Applicant who paid the household bills. He responded that all the bills were paid by him, and none by his mother.
The Tribunal asked the Applicant directly whether the granny flat was separately metered for power and heating. He responded that it was not, and all the utility bills were paid for the one residential property.
DYPJ said that his mother could not drive because of her lack of English and her dementia. He said she did not drive in Australia. He said she was capable in 2018 and 2019 of using public transport and had a Myki card. Sometimes he said he would give her a lift to wherever she wanted to go. In terms of how she spent her recreational time, DYPJ said that his mother liked bushwalking. She would also visit the local Russian community centre. He said that his mother identifies culturally as Russian.
DYPJ agreed that he had lodged a $10,000 bank guarantee as part of the Assurance of Support. He said in January 2020 there was nothing unusual in his relationship with JJCD and her relationship with other members of his family. He then said; “At some stage, my mother, purely unilaterally, developed a paranoid idea… that my wife is evil... and I must divorce from her.” He estimated this change of attitude was sometime in 2021.
DYPJ said that his mother had a key and could come and go from the main house to her granny flat. Mr Gauci asked if the family would eat together. The Applicant responded, “For most of the time until 2021 we would eat together in the main kitchen… In 2021 she said she would not take food from [my wife].”
Mr Gauci noted that JJCD applied for Special Benefit on 2 August 2021 and asked if she was receiving any other income at that time. The Applicant responded, ‘She was receiving her Ukrainian pension. There was a technical difficulty to withdraw it from an Australian ATM… in June or July 2021.’ DYPJ said that in September he succeeded in withdrawing the pension for the last three months, so he assumed the technical problem had resolved.
The Respondent asked DYPJ what happened to the pension money. He responded that he handed it all over to his mother.
DYPJ said that the police attended his residence on five consecutive occasions in the period from June to August 2021. He said that JJCD had launched a complaint that her accommodation was not adequate, and that the police had found that it was adequate. He said on the next occasion the police visited because his mother had told them she had nothing to eat. DYPJ said that, because of the pandemic restrictions at the time, rather than go to the supermarket he would order groceries online and would ask his mother if she wanted a particular item, for instance biscuits, and then order it for her. He said she would sit by him as he made his order and tell him if she wanted a particular item.
Mr Gauci drew the Applicant’s attention to a form titled Assurance of Support Review for Assurer (‘review form’) which was before the Tribunal (TD, pp 87-89). The review form says at the top, ‘Use this form to check the details of any support you are providing to the person you are supporting under an Assurance of Support. This is to make sure they are receiving the correct entitlement [sic – ‘entitlement’ is the word oddly used in the form]’. The review form was signed by DYPJ on 15 October 2021.

In the form, question 6 asks for details of support for JJCD. The Applicant said that he provided financial support of $163.32 per week. DYPJ agreed with Mr Gauci that this was not cash in hand but rather an estimation of household bills he had paid. In respect of meals, DYPJ had written the amount $65.38 as the estimated value of assistance per week. He said that his mother sat next to him when he was ordering groceries on-line and he never refused an item she requested.
Mr Gauci asked DYPJ what his view was about the conclusion of the ARO that it was not reasonable for JJCD to accept support. He responded,
’I did not start any conflict, nor did my wife…. [my mother] started it … My mother, 24/7, tried to put into my ears some or other sort of blame against my wife…, and rubbished her 24/7. My mother bombarded me with [complaints] against my wife.’
The Respondent asked DYPJ whether JJCD was restricted at this time from coming into the main house. He responded, “She might have felt uncomfortable.” He agreed that around this time (i.e. mid-2021) his mother started spending more time in her flat, and not in the main house.
DYPJ said that his mother moved out on 10 February 2022. He said that a person from the local community legal centre asked police for assistance in moving JJCD’s possessions from the granny flat while he was at work, and they attended his property without his knowledge or consent.
Mr Gauci asked the Applicant whether he had any contact with his mother since she moved out. He said she had come back but did not enter the house; he had gone for a walk with JJCD, and she proposed a ‘peace plan’ but said the only ‘treaty’ offered was that he should get rid of his wife.
Mr Gauci asked the Applicant whether he thought his wife would object to JJCD coming back to live in the granny flat. He responded, ’I don’t think it is safe. She has set against my wife. There has never been mutual conflict, it has always been unilateral.’
Mr Gauci asked DYPJ whether it was possible that his wife might have prevented JJCD from coming into the main house. He responded, ‘No, that is not possible.’
Applicant’s closing submission
In regard to the level of support the Applicant provided not matching the level the Department thought was required (TD, p 210), DYPJ told the Tribunal that numeric values are not really indicative of anything, and that his mother wanted for nothing. He submitted that it costs a lot less to pay one-fifth for a person in a household (compared to the cost of one person supporting themselves). DYPJ said that he was able to lower costs by bundling amenities like gas and electricity with one company, having the whole family on one phone plan, and ordering groceries and other provisions in large quantities. He said it was always intended that when JJCD came to Australia she would live with him, and he provided free accommodation and paid her bills.
Letter from Ms AW
After the hearing, bv leave, DYPJ lodged a letter dated September 2023 from Ms AW, who is a friend of DYPJ and his wife and family. Ms AW recited that she has known the Applicant and his wife for 16 years and met JJCD on several occasions when she had visited Australia with her late husband, prior to JJCD coming to settle in Australia permanently.
Ms AW relevantly wrote (Exhibit A15, names redacted):
JJCD came to live permanently in Australia in 2018 and resided with her son’s family on the family’s property in a well-equipped and clean one-bedroom bungalow, which contained shower, toilet and cooking facilities. JJCD ate all the meals inside the main house, that were cooked for her by [DYPJ’s wife].
After spending only a few months with the family, JJCD became very unhappy with her living arrangements and demanded DYPJ to buy her a separate house. This was not financially possible for the family due to their having 2 dependent children and the rising cost of living as well as DYPJ being the sole provider for the family and advancing towards senior years.
On some occasions I have observed high conflict between JJCD and [DYPJ’s wife]. JJCD always wanted to spend time with her son DYPJ, trying to put a wedge between [DYPJ’s wife] and DYPJ, calling [the Applicant’s wife] degrading names such as ‘pig’ and ‘rubbish’, and asking DYPJ to divorce her.
CONSIDERATION
The legislative provisions
Special Benefit is, as the name implies, a social security payment which is special in nature. Grant of Special Benefit is determined wholly in the discretion of the Secretary of the Department under s 729 of the Social SecurityAct 1991 (Cth) (‘the Act’).
The Secretary must be satisfied that the claimant is not receiving any other social security pension or payment and also must be satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason (see s 729(2)(e) of the Act).
The person must also be an Australian resident and an Assurance of Support must not apply to the person (s 729(2)(h)). However, the Act also goes on to provide, at s 729(2C):
For the purposes of paragraph (2)(h), an assurance of support applies to a person at a particular time if –
(a)An assurance of support is in force in respect of the person (the assuree) at that time; and
(b)The person who gave the assurance was willing and able to provide an adequate level of support to the assuree; and
(c)It was reasonable for the assuree to accept that support.
The Social Security Guide (‘the Guide’), is a manual used by officers of the Department. It provides at Instruction 3.7.1.30 that, in assessing a claim for Special Benefit, the following factors must be considered:
(a)the intention of the Special Benefit legislation;
(b)ability to earn a sufficient livelihood;
(c)circumstances that have led to the hardship;
(d)other reasonable means of support;
(e)social worker involvement;
(f)the available funds test; and
(g)the income test.
The Guide goes on to say that ‘insufficient livelihood’ means having an income or means of support which is less than the rate of Special Benefit which would apply to the person. Livelihood may be derived from various sources, including available funds, income, in-kind support or payments from a government department.
The Respondent noted that a person’s circumstances must be carefully considered to determine whether their inability to earn a sufficient livelihood was unavoidable, and that Special Benefit should not be payable if the person could have avoided a situation of financial hardship.
Importantly in this consideration, Instruction 3.7.1.30 of the Guide provides that Special Benefit should not be paid if the claimant is receiving, or able to receive, support from other sources; has reasonable means readily available by which they can obtain support; or can obtain funds from a country of origin or another country where they have a significant working life.
Instruction 3.7.1.50 of the Guide says that if a person is likely to depend on Special Benefit for more than 13 weeks, they would fall into the category of long-term Special Benefit. The Respondent submitted that JJCD, because of her age and social and domestic circumstances, falls into this category. The Secretary therefore submits that the long-term available funds test applies in her case.
The long-term available funds test provides that if a person’s available funds are more than $5,000, Special Benefit is not payable. If the person’s available funds are less than $5,000, Special Benefit may be payable, subject to other conditions.
Where a person has non-liquid assets that could reasonably be realised, including assets overseas, the value of those assets should be included in calculating the long-term available funds test.
In terms of JJCD, the Respondent submitted she was not receiving any other social security payment; she was residing in Australia as a permanent resident, by virtue of the nature of her visa; and she was unable to earn a sufficient livelihood because of her age and domestic circumstances.
The Secretary submitted that, at the time of the claim for Special Benefit, JJCD was no longer receiving her Ukraine pension and had limited assets valued at approximately $1,000. The Respondent further submitted that there was no evidence JJCD had any other sources of income or in-kind support and that her lack of proficiency in English meant she was either unable or would have difficulty in earning a sufficient livelihood for herself.
The Respondent noted the evidence of DYPJ of the in-kind support that he was providing by way of paying household bills and providing accommodation and food until she moved out of the granny flat, but submitted that the evidence of JJCD was that this was not the case.
Without being explicit in these reasons about this evidence in order to protect the privacy of the parties, it centres on the breakdown in the relationship between JJCD and her son, and JJCD’s assertions that she had no funds in her bank account.
It is regrettable that technical reasons meant the Tribunal could not ask questions directly of JJCD, and therefore must try and build the best picture it can from the evidence of the Applicant, the material compiled by the Department and the documents produced under summons.
The Respondent submitted that the NARWP, in relation to JJCD, would ordinarily in her case end on 25 February 2024 (208 weeks from when she was awarded a visa of a category that conferred on her permanent residence). However, the Respondent further submitted that the NARWP does not apply if s 739A(7) of the Act applies, namely that JJCD has “suffered a substantial change in circumstances beyond the person’s control after the person first entered Australia”.
The Respondent contended that, on the basis of the evidence of JJCD and third-party agencies, the Secretary was satisfied that JJCD suffered a substantial change in circumstances ‘upon arriving in Australia’, and that these changes were beyond her control as they could not be prevented. The Respondent therefore submitted that it was correct for JJCD to be exempted from the NARWP for Special Benefit such that she could be granted Special Benefit from 2 August 2021.
Tribunal’s findings
It is not in contest between the Applicant and Respondent that DYPJ provided a bank guarantee of $10,000 as an Assurance of Support linked to the grant of the contributory parent visa to JJCD (TD, p 45). A letter dated 30 January 2020 was sent to the Applicant by the Department accepting his Assurance of Support (TD, p 48).
In her application for Special Benefit (TD, p 50) dated 2 August 2021, JJCD advised that she came to Australia and was now an 81-year-old widow. She said she came on a ‘supported parent’ visa and has been a permanent resident since 24 February 2020. She stated she was not eligible for the age pension, that she lived in a small bungalow (i.e. a granny flat) at the rear of her son’s house and that her only family was her son, his wife and their two teenage children. JJCD (or, more accurately, the person filling in the claim form on her behalf) then made certain allegations which were said to be recorded by the police. The claim form goes on to say ‘Relations have broken down between us. I receive no income – my Ukraine pension of $200 (per month) has stopped. I have no money and no one to support me.’
In his detailed attachment to the review form (TD, pp 90-93) DYPJ makes certain submissions about the mental state of JJCD, which he reiterated at the hearing. He then sets out a detailed analysis of household expenses for the three months ending 15 October 2021.
DYPJ set out three-monthly estimates of expenditure of his household, which totals he has divided into five parts (i.e. himself, his wife, his two children and JJCD). DYPJ then confirmed that he then ascribed one-fifth of each of these various outlays as the financial support he was providing for his mother in the given period. .
The outlays he has listed in a given three-month period relate to gas, electricity, emergency plumbing repairs of a leaking underground water pipe, water usage charges, ambulance membership, council rates, JJCD’s mobile phone bill, Internet, car insurance, car fuel, a car loan, RACV membership costs, and car registration costs.
DYPJ also lists the cost of new hotplates and a microwave oven for the assuree’s granny flat and unspecified legal fees paid to a law firm. The Applicant also describes the granny flat which he says is brick, with ‘full ensuite, kitchenette, new air conditioning/heating’. He ascribes a rental value of $225 per week as an estimation based on an Internet search of granny flats in Melbourne which he says has not been charged to anyone.
DYPJ lists supermarket orders over the three-month period which he then divides by five and ascribes an amount of $65.38 per week to JJCD for provision of food.
On 2 June 2022 DYPJ provided an updated review form (TD, pp 116-119) for the short period from 2 to 10 February 2022 (when JJCD moved out of the granny flat). The Applicant stated that he provided financial support to his mother in that period of $16.33 per week and estimated the value of assistance in regard to accommodation as $22.50 per week.
The ARO had received advice that the Ukrainian pension was not being paid to JJCD. The ARO also noted that JJCD had provided a copy of her bank statement that showed no money going into her account from her Ukrainian pension. DYPJ’s response to this in his oral evidence was that he withdrew the money immediately from his mother’s Ukrainian account in cash and gave it to her, an amount of approximately $220 per month, once converted to Australian currency.
The Tribunal notes that the ARO had received advice from the community legal centre that the granny flat has ‘inadequate cooking and washing facilities’ and that JJCD’s family do not provide financial support or food. The ARO was advised that there was ‘no cooking facility’ in the granny flat, and that JJCD was not allowed into the main house.
The Tribunal is satisfied to make the following findings of fact.
The Applicant, DYPJ, provided an Assurance of Support in relation to his mother JJCD. At some time in the middle of 2021 the relationship between son and mother broke down.
The Tribunal is not satisfied to find that the granny flat lacked cooking facilities or even that it lacked ‘adequate’ cooking facilities. Some conclusions on this were provided to the Department by third-party persons who appear to have never visited the premises. The assertions were at odds with the independent assessment of Victoria Police officers, who did. In the relevant LEAP report when police officers first attended the granny flat, they recorded “police observed the living space…to be decent and with amenities.” It is regrettable that the ARO gave these third-party reports weight in making a decision.
The Tribunal cannot make any finding on whether or not JJCD suffers, or was suffering at the time of her Special Benefit claim, from any form of mental health condition, let alone dementia with a fixation on the Applicant’s wife that he described. This was the contention of the Applicant and he said that it manifested itself in antagonism from JJCD towards his wife. His evidence may be truthful, and it is to an anecdotal extent supported by the written statement of Ms AW. However the difficulty for the Tribunal is that there is no medical evidence before the Tribunal of any cognitive decline in relation to the Joined Party.
Ms AW was of the view that the relationship between JJCD and her son and daughter-in-law started to break down after only a few months. This is not the evidence of the Applicant, who said that relations were harmonious until sometime in 2021. However, Ms AW’s letter is useful in that it corroborates the Applicant’s evidence that JJCD for some reason turned against DYPJ’s wife, and this created, in Ms AW’s words ‘high conflict’.
The Tribunal is troubled by the evidence about the funds from the sale of JJCD’s apartment in Kiev. If the Tribunal accepts the Applicant’s evidence that the proceeds from that sale were about $A80,000 and that $A63,000 was disbursed on visa and related costs, that leaves $17,000 which presumably was to the benefit of JJCD. If the Tribunal accepts that JJCD presented evidence to the Department of no funds in her bank account, it is not clear where these funds have gone. The Tribunal is unable to make a definitive finding about whether JJCD had access to funds at the time of her claim, but the weight of the evidence supports that she did not.
The Tribunal finds it cannot accept all of DYPJ’s submissions about the support he was providing at the time of claim. Where he was asked on the review form to provide details of the actual support he provided to JJCD he ticked the box ‘financial’ but then admitted to the Respondent’s lawyer that the amount he quoted was actually his calculation of a fifth of certain household costs, that he ascribed to his mother.
In addition, the Tribunal does not accept that most of the household costs as calculated by the Applicant as ascribable to JJCD or can fairly be said to be in the nature of direct support to her. Specific costs – such as, for example, the purchase of a microwave oven and hotplates for the granny flat – can properly be seen as costs incurred which are directly in support of JJCD. However, costs such as a fifth of the repair of an underground water leak or a fifth of the cost of a car loan are not reasonably attributable as support for an individual consistent with the intent behind the assurance of personal support for JJCD as visa-holder who cannot generally draw on other social security payments.
In saying this, I impute no improper motive to DYPJ. He has endeavoured to describe as best he can what he thinks is the financial and in-kind support he has provided. However, simply dividing household costs by the number of people in the household is too blunt a calculation because, in conducting such an exercise, the direct support of what is being actually provided to an individual cannot be adequately revealed. It is not reasonable to attribute, for example, a proportion of an emergency plumbing expense to JJCD or, in point of fact, to any other individual member of the household as an example of ‘support’ for that person.
The Tribunal finds that there is conflicting evidence about JJCD’s Ukraine pension. What is common ground is that the Joined Party received a monthly payment of around $220 from the Ukraine authorities. It is suggested on her behalf that this money went into the account of DYPJ. DYPJ’s evidence is different. He says it was withdrawn directly from JJCD’s bank account and he then gave it to her in cash. In the absence of any corroboration, the Tribunal cannot make a finding about this.
However, what is accepted by the Applicant is that the payment of the Ukraine pension ceased in June 2021, and for some technical reason it was not payable to JJCD for the next three months. That is also consistent with what JJCD told the Department. DYPJ said that the pension then resumed, with back pay for the previous three-month hiatus. DYPJ provided the Tribunal with a photograph of $400 cash, a withdrawal slip and a picture of a credit card in the name of JJCD, dated September 2021. I presume the purpose of the photograph is to show funds that were available to JJCD on that date, but it is not clear. It is also not clear why DYPJ would have taken such a photograph at that time when he supposedly would be giving the withdrawn cash to JJCD.
In any event, the Tribunal finds that, for the period from June to August 2021, JJCD was not receiving her Ukraine pension, for reasons unknown but which I accept may have been a problem at the Ukraine end. It was during this period when the Joined Party applied for Special Benefit. Until the Ukraine pension ceased to be paid, it would appear on the evidence of the Applicant that JJCD had approximately $55 available a week for her to spend in a completely discretionary manner. This is not a large amount, but it is something. I find that, because of the stoppage of the pension, there is no evidence before me that JJCD had any cash to use for discretionary purposes at the time of her claim. All of the support that DYPJ has articulated in the review form and his detailed attachment was ‘in-kind’ support; JJCD did not have any cash at hand, nor apparently any cash reserves on deposit (and in any event the evidence is that she was unable to use an ATM without assistance).

The Tribunal accepts the evidence of the Applicant that he provided accommodation for his mother, including paying for heating, and utility costs. The Tribunal accepts on the weight of the evidence, particularly the Victoria Police LEAP reports, that the accommodation was indeed adequate, and rejects the third-party and uninformed assertions to the Department that it was not. It would appear that the reason JJCD did not have food in her fridge, as she showed the police on one occasion when they visited, was because of the breakdown in her relationship between her son and his wife, not because food was not necessarily available.
Having said that, JJCD is an elderly lady with very little command of English and who had become estranged from her son and his family in a foreign land. On the Applicant’s own evidence, she could not use an ATM independently, and relied on others to withdraw funds on her behalf. This context is important in terms of the effective agency that JJCD can reasonably be said to have.
What is an adequate level of support?
The Social Security Guide is not binding on this Tribunal; however it is desirable for the Tribunal to have regard for it as it promotes consistency in the application of government policy and it was used by Department officers in their assessment of JJCD’s claim and in DYPJ’s challenge to the date of the grant of Special Benefit (see, relevantly, the remarks of President Brennan in Re:Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634).
The Guide supports a conclusion that ascertaining what is an ‘adequate level’ of support should be arrived at by comparing the actual support for a person against the amount payable for Special Benefit, from time to time.
A guide to Australian Government payments (‘AGAGP’) is a periodical document issued by the Department. Pursuant to s 33(1)(c) of the AAT Act, the Tribunal has consulted the relevant edition of AGAGP for the time JJCD made her claim. In terms of the rate of Special Benefit, AGAGP refers readers to the rate of JobSeeker Payment. The rate of JobSeeker Payment at that time relevant to the Joined Party as a person without dependent children was $620.80 per week. Importantly, AGAGP notes that this figure may be varied if the claimant has accommodation provided (as was the case with JJCD).
The Tribunal finds in this assessment that what is an ‘adequate level’ of support must logically extend not only to the provision of accommodation and food, but also to the assuree having some funds for discretionary expenditure, such as for personal day-to-day needs. The amount of discretionary funds need not be munificent, but it must be sufficient for an individual to be able to make some personal choices about things they might need, such as clothes, toiletries, items for personal grooming, etc. There is no evidence that JJCD had any such personal funds at the time when she applied for Special Benefit. Her Ukraine pension had (albeit temporarily) ceased and she apparently did not have accessible funds in her bank account. The Tribunal is therefore satisfied to find that she did not have an adequate level of support at the time of her claim for Special Benefit.
In short, I find that an adequate level of support means, because of the policy set out in the Guide, a level of support which is in material terms equivalent to the rate of Special Benefit payable from time to time. An important qualification to this finding is that the actual amount of financial support given by the assurer might be affected by in-kind support given to the assuree (such as for accommodation, utilities, provision of food, etc.), but the Tribunal considers that the support must include some ability for reasonable discretionary spending by the assuree for their personal requirements.
There are unsatisfactory aspects about how this matter was dealt with by the Department. The third-party advocates for JJCD, while no doubt well-intentioned, tended on the whole to uncritically accept assertions she had made and, in some cases, even embellish those in representations to the Department (an example being the factually incorrect information about cooking facilities at the granny flat).
However, the practical reality is, as the Applicant accepted, that for whatever reason, the personal relationship between him and his mother completely broke-down and she voluntarily took herself away from living in her flat adjacent to DYPJ’s house. I do not accept the submission in the RSFIC that JJCD’s circumstances changed ‘upon arriving in Australia’, but I do accept they changed in June 2021 when her Ukraine pension stopped being paid. I am satisfied that there has been a substantial change in circumstances after JJCD entered Australia, which fulfils the requirements in s 739A(7) of the Act.
I am also satisfied that, because of this estrangement, it became unreasonable for JJCD to accept what in-kind support the Applicant had been providing to her when she was living in the flat adjacent to his house (see s 729(2C)).
After careful consideration, and taking into account the purpose of the Act which has consistently been held by the Courts to be read as beneficial, the Tribunal is satisfied that this factual situation was a change in circumstances which were, in regard to all the facts before me, beyond JJCD’s control and which could not be prevented, so therefore the discretion in s 739A(7) of the Act was correctly exercised.
It is important in these reasons to make clear to the Applicant that the question I must determine is whether JJCD was eligible for the grant of Special Benefit when she was granted it. I have found that she was. In his lengthy opening submissions, DYPJ proffered the view that the Tribunal also had to determine whether he had ‘failed’ in his Assurance of Support. I decline to make such a finding. What is clear, and I think the Applicant would accept this, is that his relationship with his mother sharply deteriorated in mid-2021. That much is clear by the evidence produced under summons that she contacted the police, and they attended the residence on four separate occasions in response (and on a fifth occasion to assist her to move).
Having read the unredacted LEAP reports, I am prepared to accept that some of what JJCD asserted to the police was factually incorrect. I also emphasise that the police specified that there was no evidence of any physical altercations between DYPJ and JJCD whatsoever, only evidence of verbal arguments and what the police, I think accurately, described as a break-down in the family dynamic.
This combination of circumstances, coupled as it is with the advanced age of the Joined Party, her lack of English language skills and a dearth of other contacts in Australia, satisfies me that the reviewable decision was correct. It inevitably follows that DYPJ will accrue a debt for income support payments made to JJCD and will be liable in the future when the debt is raised, consistent with his provision of an Assurance of Support at the beginning of 2020.
The Tribunal finds, although it might be critical of the reliance of the ARO on some third-party statements of which there was no corroborative proof, because of the breakdown in the family relationship, JJCD was not receiving an adequate level of support from a period commencing in around June 2021 when her Ukraine pension stopped. I am therefore satisfied that the Respondent’s decision to grant JJCD Special Benefit from 2 August 2021 was correct in law and also the preferable decision where, as in this case, a discretion must be exercised.
DECISION
The Tribunal affirms the decision that the Joined Party, JJCD, was eligible to be paid special benefit from the date of her claim on 2 August 2021.

I certify that the preceding 113 (One-hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................................[SGD]........................................
Associate
Dated: 12 October 2023

Date of hearing:

30 August 2023

Applicant:

DYPJ (self-represented)

Advocate for the Respondent

Representative of the Respondent

Mr Matt Gauci

Ms Vincci Chan

Solicitors for the Respondent:

Joined Party

Services Australia

JJCD

ANNEXURE - SCHEDULE OF EXHIBITS
T Documents (T1 – T22)  R1
T Documents (T8, T9, T16 removed)  R2
Certificate of Ownership – Ukraine apartment 18 May 1999  A1
Authorisation to sell apartment 4 June 1999  A2
Advice of Dr Konstantin Tringas dated 16 August 2022  A3
Advice of office of Member for Aston dated 21 September 2022                 A4
Ombudsman decision dated 26 September 2022  A5
Commonwealth Ombudsman Complaint dated 20 December 2022            A6
Ombudsman review dated 20 December 2022  A7
Centrelink reviews information dated 27 December 2022  A8
SSRV information sheet - when Centrelink fails to make a decision            A9
Ukraine Household Income per capita, 1999 – 2021  A10
Ukrainian Pension ATM withdrawal Feb-March 2021  A11
Ukrainian Pension ATM withdrawal May-June 2020  A12
Ukrainian Pension ATM withdrawal Oct-Nov 2020  A13
Ukrainian Pension ATM withdrawal Sept 2021  A14

[2023] AATA 3242

12 October 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/9729
GENERAL DIVISION	)

Date of hearing:	30 August 2023
Applicant:	DYPJ (self-represented)
Advocate for the Respondent Representative of the Respondent	Mr Matt Gauci Ms Vincci Chan
Solicitors for the Respondent: Joined Party	Services Australia JJCD